Leiden Law Blog

The Future of EU Asylum Law

Under pressure, everything becomes fluid. Even though the ink of the recasts of the most important instruments of EU asylum law is barely dry, under the pressure of the current debates on asylum, the European Commission last week submitted a proposal to drastically reform EU asylum law. Not surprisingly, it is seeking the solution to the current crisis in the further Europeanisation of this area of law. The Commission has proposed and announced a range of measures. The most fundamental measures are discussed below.

Which Member State is responsible for handling an application for asylum? The Commission is seeking to make the system more sustainable and fairer through amendments to the Dublin III Regulation, in particular by introducing either a corrective fairness mechanism or a distribution key. The introduction of a corrective fairness mechanism to supplement the Dublin system would mean that in case a Member State receives a high number asylum seekers, the relocation of asylum seeker to other Member States could take place. The other option is based on the allocation of asylum seekers to the Member States using a a distribution key which reflects the size, wealth and absorption capacity of the Member States.

Perhaps the most far-reaching of the proposed measures is the idea of the Commission to shift from the harmonisation to the unification of asylum law. The objective of the Commission is to achieve greater convergence in the EU asylum system. In order to achieve this, it intends proposing new rules on key aspects of the asylum procedure, including rules on admissibility, the use of accelerated procedures, the treatment of subsequent applications and the right to remain on the territory. An important feature of this is the idea that there should be a ‘fully harmonised’ list of safe third countries. These new rules are to be laid down in a new Asylum Procedures Regulation, replacing the current Directive. Taking away the margin of appreciation in the implementation of the Directive would, according to the Commission, reduce incentives for asylum seekers to move to and within the EU. In addition, an Asylum Qualification Regulation is proposed, replacing the current Directive. The Commission announces that it intends to review the level of rights in order to reduce ‘undue pull factors’, while stating that it will fully respect fundamental rights and international norms. One of the proposals is to better clarify the distinction between refugee protection and subsidiary protection and to differentiate between the rights associated with both statutes.

Confronted with a ‘crisis’ in which the Council took the initiative to make a deal with Turkey on taking back asylum seekers arriving in Greece, the Commission is responding rapidly with these proposals to fundamentally reform EU asylum law. The Commission sees the solution to the mass influx of asylum procedures in further Europeanisation. Even though this move by the Commission can be characterised as bold and ambitious, it is questionable how realistic some of the proposals are. Until now, it has proven to be impossible to unite the Member States on the resettlement of asylum seekers from either the ‘hot spots’ in Greece or now in Turkey. If this cannot be achieved, is it realistic to believe that there is sufficient political will to fundamentally reform the Dublin system? With regard to the unification of EU asylum law, similar doubts can be cast. Are the Member States ready to give up more of their own competence to Brussels? Besides this, there are serious concerns on the effective respect for fundamental rights and international norms were these proposals to be realised. Even if the legal framework is in accordance with fundamental rights and international norms, it needs to be ensured that this will also be achieved in asylum law practice. It remains to be seen whether these plans will ever come to fruition.

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